On Thursday, June 2, 2022, the preliminary injunction hearing for the Behring lawsuit against the USCIS was held in person with audio available via Zoom for approximately 3 hours.
Throughout the hearing, Judge Chhabria seemed to be conveying how impractical and inappropriate it is to require existing regional centers to be redesignated and stop them from accepting new investments (sponsoring new I-526 petitions). He noted that it seemed important for Congress that previously filed I-526 petitions are adjudicated and regional centers need to be involved in the process. USCIS argued that regional centers have a fiduciary duty to still respond to requests for evidence, but the Judge wisely argued with him that if a regional center is out of business, they cannot practically fulfill such fiduciary duty.
Judge Chhabria stated that he was unsure whether he had authority to provide interim relief that can extend to all other regional centers. He said that USCIS may decide that it will require all regional centers to be redesignated again, but this time, USCIS can no longer do so by asserting that the EB-5 Reform and Integrity Act of 2022 (“RIA”) required preexisting regional centers to be redesignated again, because the Judge believes that USCIS made a legal error by doing so. USCIS should go through the proper rulemaking process before doing so.
Judge Chhabria was ready to rule in favor of the Plaintiff and also to turn the green light back on for all regional centers and allow new I-526 submissions under pre-existing regional centers as long as he had authority to do so. Judge Chhabria asked Plaintiff’s attorney, who seemed confident that the judge had authority to do so, to provide a brief on this by Monday, June 6.